Both the chief justice and justice minister alluded to recent rhetoric by Canadian politicians
In separate remarks at the Canadian Bar Association’s annual general meeting on Wednesday, Supreme Court of Canada Chief Justice Richard Wagner and Justice Minister and Attorney General Sean Fraser delved into the same theme: threats to the rule of law within Canada’s borders.
“I fear sometimes that the downfall of our country will not come from the source that many people think it may have,” Fraser said, noting that his generation has long believed that threats to Canada’s security “is coming from some foreign actor on the other side of the world.”
Fraser argued that the threat Canada faces is much closer to home.
“The real scare that I feel is that some future government, empowered by an erosion of our rights and institutions today, will seek to govern for their private interests, will change the rules so they don’t need to cater to the interests of a broad swath of the public, but instead will focus on a narrow slice of the electorate to help them to retain power so they can serve the narrow interests of a particular group who will keep them elected,” Fraser said.
Asked about judges who criticized elected officials for “stepping over the line” on several occasions this past year, and what their decision to speak out says to him, Wagner responded, “We live in a very difficult circumstance, an unprecedented moment… We are witnessing a worrying decline in the rule of law.”
Over the past year, judges at various courts have criticized Alberta Premier Danielle Smith and Ontario Premier Doug Ford for rhetoric suggesting the judiciary is not impartial.
“The willingness of some members of the judiciary to speak up underscores both the seriousness of the moment and the shared responsibility we all bear in preserving the integrity of our democratic framework,” Wagner said.
Wagner and Fraser were among those who spoke in the first hour of the annual general meeting, where members of Canada’s largest legal organization voted on resolutions related to submitting late resolutions to the annual meeting, launching an AI working group, and endorsing a law which affirms that fiduciaries’ powers extend to digital assets.
Wagner’s remarks were brief, citing data that showed that Canadians’ trust in institutions, including the Supreme Court of Canada, has increased over the past year. However, he also said that “we are seeing growing pressure on democratic institutions. Courts are questioned. Judges are attacked.”
Fraser painted a more detailed picture.
“You are seeing a hyper-polarized political context and the debate’s not only in the House of Commons but they play out in our communities,” Fraser said. “We are increasingly dealing with a generation of Canadians who have had their experience in democratic discourse dictated by algorithms on social media, which are more likely to confirm someone's biases than to challenge their perspectives.
“I become concerned when I see the nature of these democratic conversations become more about winning an argument than it does about achieving progress,” Fraser said.
He added, “In particular, I find it extremely troubling when you have political actors who would argue that the justice system should be weaponized against their political opponents, when you see efforts to suppress voters who may align with a political party other than your own, [and] when you see the politicization of courts; both the decisions taken by justices who are not free to defend themselves in a public sphere but also the judges that are selected not by virtue of their lack of experience but by allegations of their political alignment.”
Asked about the federal government’s strategy for protecting judicial independence in light of premiers threatening to use the Canadian Charter of Rights and Freedoms’ notwithstanding clause, Fraser said it was prepared to respond in several ways.
The clause, in s. 33 of the Charter, empowers federal, provincial, and territorial lawmakers to temporarily override Charter rights. It also prevents courts from striking down Charter violations.
“When appropriate, we’re actually going to step up and appear in court to defend democracy and the rule of law,” he said. “We’re going to issue public statements in response to attempts to erode the public trust in the judiciary by criticizing judicial appointments or decisions.
“One of the things that I just find so frustrating in this conversation is that those who are quick to criticize a decision actually have the tool, typically, that would allow them to change the law so a court would make a different decision,” he added. If politicians want to change a law, they have a process they can follow once they garner enough support from their constituents, Fraser said.
“We are not living in an era of kings who can overrule courts. The very concept of the rule of law is that even those who make the laws are subject to them.”
